of military personnel or civilian employees is present, or if present and occurring within the scope of their employment, is at least less obvious or less personal but where, because of the peculiar nature of the activity or of the resulting damage or injury, the burden of the loss should be borne rather by the Government than by the particular individual on whom the loss initially fell. Included also are claims arising out of activities such as those involving the use of explosives, not involving negligent or wrongful acts or omissions, of which damage or injury is a natural consequence. example, included are claims for damage or injury arising out of, and which are natural or probable results or incidents of, maneuvers and special field exercises, practice firing of heavy guns, practice bombing, operation of aircraft and antiaircraft, use of barrage balloons, use of instrumentalities having latent mechanical defects not traceable to negligent acts or omissions, and movement of combat vehicles or other vehicles designed especially for military use.

For

[17 F. R. 3322, Apr. 15, 1952, as amended at 18 F. R. 3411, June 13, 1953]

§ 836.14 Claims considered under other regulations-(a) General. Even though a claim may be determined to be cognizable under §§ 836.11 to 836.24, it should first be considered and adjudicated by a proper designee of the Secretary of the Air Force under the provisions of §§ 836.61 to 836.83, §§ 836.90 to 836.108, or §§ 836.141 to 836.148, if applicable.

(b) Injury or death of Air Force personnel or civilian employees. Claims for medical, hospital, and burial expenses on account of injury or death of military personnel or civilian employees of the Air Force will first be considered under the provisions of applicable directives. Claims of civilian employees also should be first considered and adjudicated under the provisions of the Federal Employees' Compensation Act (39 Stat. 742, as amended, 5 U. S. C. 751-793), if applicable.

[18 F. R. 3411, June 13, 1953]

§ 836.15 Contributory negligence. Contributory negligence will constitute an absolute bar to a claim presented under the provisions of §§ 836.11 to 836.24. The law of the jurisdiction in which the accident or incident occurred normally will be followed in determining whether

contributory negligence is present. The doctrine of comparative negligence is not applied.

§ 836.16 Statute of limitations. Claims must be presented in writing within one year after the occurrence of the accident or incident out of which the claim arises, except that if the accident or incident occurs in time of war, or if war intervenes within one year after its occurrence, a claim may, if good cause for the delay is shown, be presented within one year after peace is established.

§ 836.17 Contract claims. Any claim which is otherwise within the provisions of section 1, 57 Stat. 372, as amended; 31 U. S. C. 223b, but appears to be founded in contract, express, or implied, will be forwarded to The Judge Advocate General, United States Air Force, for appropriate administrative action.

§ 836.18 Claims in excess of $1,000. Any claim which is asserted in an amount in excess of $1,000 will be forwarded to The Judge Advocate General, United States Air Force, for appropriate action. Such action may include forwarding of the claim by the Secretary of the Air Force to the Bureau of the Budget with a recommendation that it be included in a deficiency bill for consideration by the Congress without the necessity of the claimant's initiating private relief legislation. Elements of the claim which are not within the scope of §§ 836.11 to 836.24, such as compensation for loss of wages, pain and suffering, permanent disability or wrongful death will not be included in any claim so reported. If any part of the loss for which claim is made under the provisions of this section is covered by insurance, the report of investigation will include the name of the insurance company, the amount of insurance, and the amount recovered by the claimant.

§ 836.19 Personal injury claims; expenses allowable-(a) Medical expenses (1) Included. Items properly allowable include, if reasonably necessary and reasonable in amount and actually incurred:

(i) Transportation, by ambulance or otherwise, from the scene of the accident or incident to a physician or hospital, and to and from residence to a physician or hospital, for examination or treatment.

(ii) Services performed by physicians, surgeons, dentists, laboratory techni

cians, anesthetists, masseurs, and registered and practical nurses.

(iii) Physiotherapy.

(iv) X-ray and roentgenological examination and treatment.

(v) Laboratory tests.
(vi) Medicines.

(vii) Other reasonably necessary medical expenses.

(2) Excluded. No amount may be allowed, as an item of the claim, for medical services furnished at the expense of the United States.

(b) Hospital expenses-(1) Included. Items properly allowable include, if reasonably necessary and reasonable in amount and actually incurred:

(i) Use of emergency and surgical rooms.

(ii) Room and board.

(iii) Anesthetics, medicines, laboratory fees, and dressings.

(iv) Payments to blood donors.

(v) Other reasonably necessary hospital expenses.

(2) Excluded. No amount may be allowed, as an item of the claim, for hospital services furnished at the expense of the United States.

(c) Burial expenses-(1) Included. Items properly allowable include, if reasonable in amount and actually incurred:

(i) Undertaker's services.

(ii) Casket.

(iii) Transportation.

(iv) Cemetery lot.

(v) Services of minister, priest, or rabbi.

(vi) Interment or cremation.

(vii) Other reasonably necessary burial and funeral expenses.

(2) Excluded. No amount may be allowed, as an item of the claim, for any portion of the expense of burial otherwise paid by the United States.

§ 836.20 Approval or disapproval. The action of the approving authority in approving or disapproving a claim in whole or in part will be final and conclusive for all administrative purposes unless the claimant appeals in writing to the Secretary of the Air Force.

§ 836.21 Appeals. Upon disapproval of a claim in whole or in part, claimant should be notified of the action taken

and the reason therefor. He will also be advised of his right to appeal to the Secretary of the Air Force, through the authority disapproving the claim, within 30 days. An appeal will be considered as having been taken reasonably if mailed or delivered within 30 days after receipt by claimant of such notification. In his appeal, the claimant should state the grounds upon which he relies.

§ 836.22 Subrogation. (a) An insurance carrier will be recognized as a claimant under §§ 836.11 to 836.24 to the extent that it has become subrogated by payment to or in behalf of its insured, pursuant to a contract of insurance in force at the time of the accident or incident from which the claim arises. An insurance carrier and its insured may file a claim either jointly or separately. Joint claims must be asserted in the names of, and must be signed by, all parties; payment will then be made jointly. If separate claims are filed, payment to each party will be limited to the extent of such party's undisputed interest.

(b) For the purpose of determining authority to settle a claim, the payable interests of the insurance carrier (or carriers) and the insured represent separable interests, which interests in the aggregate must not exceed $1,000, the amount authorized for administrative settlement.

(c) The policies set forth in paragraphs (a) and (b) of this section with respect to subrogation arising from insurance contracts are applicable to all other types of subrogation. (See § 836.5.)

(d) All designees of the Secretary of the Air Force are authorized to settle any claim involving subrogation, if otherwise within their authority.

(e) In support of all claims of insureds there should be submitted, in triplicate, a written statement, signed by the insured and bearing the same date as the claim, showing the name, address, and policy number of the insurer; whether a claim for the same damage, loss, destruction, injury, or death also has been filed or will be filed with the insurer; the amount thereof, the type and amount of insurance carried by the insured; and whether the insurer has paid or is expected to pay the claim in whole or in specified part. However, claimants who are not covered by insurance of the type involved in a claim may, in lieu thereof,

indicate such fact by the inclusion of an appropriate statement on the claim, for example: "No insurer is involved," and state the type of insurance carried on the property or person involved in the accident or incident for which claim is filed.

(f) An insurance carrier who becomes subrogated to the rights of an insured must support its claim as to liability and measure of damages (quantum) in the same manner as any other claimant. In this connection, the policy, release and subrogation agreement, affidavit, or other documentary evidence that payment in the same or a larger amount than that claimed has been made to the insured, or on his behalf, will not be accepted by the approving authority as sufficient evidence to establish such facts, inasmuch as such settlements are not binding upon the United States and an independent adjudication, supported by authorities and appropriate evidence, is required by the act of July 3, 1943 (sec. 1, 57 Stat. 372, as amended; 31 U. S. C. 222c, 223b) and §§ 836.11 to 836.24.

[18 F. R. 3412, June 13, 1953]

§ 836.23 Payment. Prior to payment of any claim within the provisions of §§ 836.11 to 836.24, each of the following conditions must be met:

(a) The amount of the damage, loss, or destruction, or the amount payable on account of personal injury or death must be determined in accordance with the provisions of § 836.4 and §§ 836.11 to 836.24.

(b) The amount must not exceed $1,000, but claims in excess of that amount may be reported to Congress for consideration.

(c) Normally the claim must be presented within one year after the occurrence of the accident or incident out of which the claim arises.

(d) The claim must be approved by the appropriate designee of the Secretary of the Air Force, or, on appeal, by the Secretary of the Air Force.

(e) If the claim is approved for less than the full amount, the claimant must sign a written statement on Standard Form 96 (Settlement Agreement) signifying his willingness to accept the amount so approved in full satisfaction and final settlement of his claim.

§ 836.24 Claims not payable. The following claims are not payable under the provisions of §§ 836.11 to 836.24.

(a) Claims for damage or injury caused in whole or in part by the negligence or wrongful act of the claimant.

(b) Claims of Air Force personnel or civilian employees for personal injury or death incident to their service.

(c) Claims payable under the provisions of §§ 836.31 to 836.46, §§ 836.61 to 836.83, §§ 836.90 to 836.108, or §§ 836.141 to 836.148.

(d) Claims for damage to or loss or destruction of property, or for personal injury or death, resulting from action by the enemy, or resulting directly or indirectly from any act by Armed Forces engaged in combat.

(e) Claims for rent of real property or personal property.

(f) Claims of enemy nationals unfriendly to the United States.

[17 F. R. 3322, Apr. 15, 1952, as amended at 18 F. R. 3412, June 13, 1953]

TORT CLAIMS

AUTHORITY: §§ 836.31 to 836.46 issued under R. S. 161, sec. 202, 61 Stat. 500, as amended; 5 U. S. C. 22, 171a. Interpret or apply sec. 1, 57 Stat. 372, as amended, sec. 1, 59 Stat. 225, sec. 1, 62 Stat. 983, as amended, sec. 1, 64 Stat. 144; 31 U. S. C. 222c, 223b, 28 U. S. C. 2672, 50 U. S. C. 735.

SOURCE: §§ 836.31 to 836.46 appear at 17 F. R. 3324, Apr. 15, 1952, except as otherwise noted.

§ 836.31 Purpose. Sections 836.31 to 836.46 outline the procedure for administrative settlement of tort claims cognizable under the provisions of 62 Stat. 982; 28 U. S. C. 2671-2680 for injury or loss of property or for personal injury or death caused by the negligent or wrongful act or omission of military personnel or civilian employees of the Department of the Air Force or of the United States Air Force while acting within the scope of their office or employment.

§ 836.32 Definitions. As used in the statute, "employee of the government" includes officers or employees of any Federal agency, members of the military or naval forces of the United States, and persons acting on behalf of a Federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation, and "acting within the scope of his office or employment," in

the case of a member of the military or naval forces of the United States means acting in line of duty.

§ 836.33 Scope-(a) General. Title 28 of the United States Code and §§ 836.31 to 836.46 authorize the Secretary of the Air Force and his designees to consider, ascertain, adjust, determine, and settle tort claims for $1,000 or less, against the United States, except those arising in foreign countries.

(b) Exceptions. The provisions of §§ 836.31 to 836.46 do not apply to:

(1) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid; or based upon the exercise or performance, or the failure to exercise or perform, a discretionary function or duty on the part of a Federal agency or an employee of the Government, whether or not the discretion involved be abused.

(2) Any claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter.

(3) Any claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods or merchandise by any officer of customs or excise or any other law-enforcement officer.

(4) Any claim for which a remedy is provided by 41 Stat. 525, 43 Stat. 1112, sections 203, 204, 904; 49 Stat. 1987, 2016; 46 U. S. C. 741-752, 781-790, relating to claims or suits in admiralty against the United States.

(5) Any claim arising out of an act or omission of any employee of the Government in administering the provisions of 40 Stat. 411; 50 U. S. C. App., 1–31.

(6) Any claim for damages caused by the imposition or establishment of the quarantine by the United States.

(7) Any claims arising from the activities of the Panama Canal Company.

(8) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.

(9) Any claim for damages caused by the fiscal operations of the Treasury or by the regulation of the monetary system.

(10) Any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war.

(11) Any claim arising in a foreign country.

(12) Any claim arising from the activities of the Tennessee Valley Authority.

[17 F. R. 3324, Apr. 15, 1952, as amended at 18 F. R. 3412, June 13, 1953]

$836.34 Claims in excess of $1,000(a) General. The Department of the Air Force does not have authority to settle administratively claims in excess of $1,000 which are otherwise cognizable under §§ 836.31 to 836.46. In such cases, claimant may bring suit against the United States pursuant to the provisions of sections 1346 (b) and 1402 (b) of Title 28 of the United States Code.

(b) Subrogation claims. Claims of subrogor and subrogee, even though filed independently of each other, cannot be settled administratively where the aggregate of the amounts claimed totals more than $1,000 notwithstanding that each is less than $1,000. The interests of subrogor and subrogee are only interests in the same single claim (41 Op. Atty. Gen. 13).

§ 836.35 Scope of employment. The law of the place where an act or omission occurred will govern in determining whether the personnel involved were acting within the scope of their employment. Ordinarily such acts or omissions are within the scope of employment if the performance thereof is directed, or if of a kind the performance of which is expressly or impliedly authorized, or if the purpose is, at least in part, to serve the Government. Consideration should be given to all of the attendant facts and circumstances including: the time, place, and purpose of the activity; whether the activity was for the furtherance of the general interest of the Government; whether the activity is usual for personnel of the grade and classification involved or reasonably to be expected of such personnel; and whether the instrumentality from which the damage or injury resulted was owned or furnished by the Government. A slight deviation as to time or place ordinarily will not constitute a departure from scope of employment; to have legal effect, it must be a material deviation.

If

§ 836.36 Proximate cause. Claims are payable under §§ 836.31 to 836.46 only where the circumstances are such that the United States, if a private person, would be liable to the claimant under the law of negligence of the place where the act or omission occurred. Acts or omissions involving a lack of reasonable care will be the basis of claims payable under the local law of most jurisdictions. the proximate cause of the accident or incident is the act or omission of persons other than military personnel or civilian employees, the claim will not be payable, as a general rule, under local law. If the proximate cause of the accident or incident is the joint or concurrent tortious act or omission of military personnel or civilan employees and of one or more persons other than the claimant, his agent, or employee, the claim will be considered, and determined necessarily, under the local law pertaining to joint tort-feasors. Acts or omissions creating a mere condition without the existence of which the accident or incident could not have occurred, and which are not the proximate cause thereof, will not constitute a proper basis for finding of liability under the applicable local law as a general rule. For example, the mere violation of certain statutory laws or ordinances providing standards of safety may be declared to be negligence (per se), but such violations will not constitute the basis of liability under local laws generally unless the unlawful acts or omissions are deemed a proximate cause of the accident or incident in that jurisdiction.

§ 836.37 Contributory negligence. The law of the place where the act or omission occurred will be followed in determining whether contributory negligence is present under the facts of the accident or incident, and also in ascertaining the effect of contributory negligence as a bar to the claim under consideration. Local law will also be followed in determining whether or not the doctrine of comparative negligence is applicable.

§ 836.38 Conflict of laws. Where there is a conflict between the local law and an express provision of 62 Stat. 982; 28 U. S. C. 2671-2680, the latter governs. Examples are the "dangerous instrumentality" doctrine and owner's liability statutes.

§ 836.39 Subrogation. (a) An insurance carrier will be recognized as a

An

claimant under §§ 836.31 to 836.46 to the extent that it has become subrogated by payment to or in behalf of its insured, pursuant to a contract of insurance in force at the time of the accident or incident from which the claim arises. insurance carrier and its insured may file a claim either jointly or separately. Joint claims must be asserted in the names of, and must be signed by, all parties; payment will then be made jointly. If separate claims are filed, payment to each party will be limited to the extent of such party's undisputed interest.

(b) For the purpose of determining authority to settle a claim, the payable interests of the insurance carrier (or carriers) and the insured represent separable interests, which interests in the aggregate must not exceed $1,000, the amount authorized for administrative settlement.

(c) The policies set forth in paragraphs (a) and (b) of this section with respect to subrogation arising from insurance contracts are applicable to all other types of subrogation. (See § 836.5.)

(d) All designees of the Secretary of the Air Force are authorized to settle any claim involving subrogation, if otherwise within their authority (see § 836.34). Although claims by an insured and/or subrogor are not subrogation claims, such claims involve subrogation and may be settled by a designee in accordance herewith.

(e) In support of all claims of insureds there should be submitted, in triplicate, a written statement, signed by the insured and bearing the same date as the claim, showing the name, address, and policy number of the insurer; whether a claim for the same damage, loss, destruction, injury, or death also has been filed or will be filed with the insurer; the amount thereof, the type and amount of insurance carried by the insured; and whether the insurer has paid or is expected to pay the claim in whole or in specified part. However, claimants who are not covered by insurance of the type involved in a claim may, in lieu thereof, indicate such fact by the inclusion of an appropriate statement on the claim, for example; "No insurer is involved," and state the type of insurance carried on the property or person involved in the accident or incident for which claim is filed.